State v. Bozelko

Court of Appeals of Connecticut

August 15, 2017

STATE OF CONNECTICUTv.CHANDRA BOZELKO

Argued
May 16, 2017

Procedural
History

Substitute
information, in the first case, charging the defendant with
the crimes of attempt to commit larceny in the first degree,
identity theft in the first degree, attempt to commit illegal
use of a credit card and forgery in the third degree, and
substitute information, in the second case, charging the
defendant with the crimes of larceny in the third degree,
identity theft in the third degree, illegal use of a credit
card and forgery in the third degree, and substitute
information, in the third case, charging the defendant with
the crimes of attempt to commit larceny in the fifth degree,
attempt to commit illegal use of a credit card and identity
theft in the third degree, and substitute information, in the
fourth case, charging the defendant with the crimes of
larceny in the fifth degree, illegal use of a credit card and
identity theft in the third degree, brought to the Superior
Court in the judicial district of Ansonia-Milford,
geographical area number five, where the cases were
consolidated; thereafter, the matter was tried to the jury
before Cronan, J.; verdicts and judgments of guilty,
from which the defendant appealed to this court, which
affirmed the judgment of the trial court; subsequently, the
Supreme Court denied the defendant's petition for
certification to appeal; thereafter, the court, Arnold,
J., dismissed the defendant's motion to correct an
illegal sentence, and the defendant appealed to this court,
which reversed the judgment of the trial court and remanded
the case for a hearing on the defendant's motion to
correct an illegal sentence; subsequently, the court,
Arnold, J., denied the defendant's motion to
correct an illegal sentence, and the defendant appealed to
this court. Affirmed.

The
defendant, who had been convicted of ten felonies and four
misdemeanors in connection with four separate incidents
involving larceny, attempt to commit larceny, identity theft,
forgery, illegal use of a credit card and attempt to commit
illegal use of a credit card, appealed to this court from the
trial court's denial of her motion to correct an illegal
sentence. In her motion, the defendant alleged that the
presentence investigation report utilized by the sentencing
court had been prepared without her input, and that because
the incomplete report contained material and harmful
misrepresentations about her, including her purported lack of
cooperation in the preparation of the report by refusing to
participate in a presentence investigation interview, she was
sentenced in an illegal manner because her sentence was based
on inaccurate and misleading information in violation of her
due process rights. Held that the trial court did
not abuse its discretion in denying the defendant's
motion to correct an illegal sentence: even if the
defendant's probation officer had misrepresented the
defendant's unwillingness to assist in the preparation of
the presentence investigation report, the defendant failed to
establish either that such misrepresentation was material to
her sentencing or that it was actually relied on by the
sentencing court, and, therefore, the trial court did not err
in concluding that the defendant had failed to prove that the
sentencing court gave specific weight or consideration to
inaccurate or misleading information when it imposed its
sentence, and although the defendant claimed that it was
impossible for her to prove what portions of the report the
sentencing court actually relied on because she was not
permitted to subpoena the judge to testify at the evidentiary
hearing, the defendant failed to file a motion for
articulation with respect to those portions of the report
considered and relied on by the sentencing court; moreover,
the defendant was not precluded from presenting mitigating
evidence to the court, as the defendant and her counsel were
afforded nearly twenty-six hours to review the substance of
the report and discussed a number of mitigating factors with
the sentencing court, including the defendant's
background, her advanced education, her full restitution to
each of the victims and her role as a caregiver for her sick
father, and she was afforded an opportunity to address the
court and to present additional mitigating evidence, but
declined to do so.

OPINION

SHELDON, J.

This
case returns to this court following our reversal of the
trial court's ruling[1] that it lacked subject matter
jurisdiction over the defendant's motion to correct an
illegal sentence, and the resulting remand to the trial
court, Arnold, J., for further proceedings on the
merits of the defendant's motion. State v.
Bozelko, 154 Conn.App. 750, 766, 108 A.3d 262 (2015).
The defendant claimed that the sentencing court, Cronan,
J., sentenced her in an illegal manner by relying on
misleading or inaccurate information set forth in her
presentence investigation report (PSI). Id., 763-64.
On remand, Judge Arnold denied the defendant's claim,
finding that the defendant had failed to present any evidence
showing that the sentencing court had relied on misleading or
inaccurate information in imposing her sentence. On appeal,
the defendant challenges that determination. We affirm the
judgment of the trial court.

The
lengthy procedural history of this case was previously set
forth by this court, inter alia, on the defendant's
direct appeal from her underlying convictions; see State
v. Bozelko, 119 Conn.App. 483, 485-87, 987 A.2d 1102,
cert. denied, 295 Conn. 916, 990 A.2d 867 (2010), cert.
denied, U.S., 134 S.Ct. 1314, 188 L.Ed.2d 331 (2014); and in
our decision remanding this matter back to the trial court.
State v. Bozelko, supra, 154 Conn.App. 752-58.
Following our decision remanding the matter back to the trial
court, an evidentiary hearing on the defendant's motion
to correct was held on July 13, 2015, and February 1, March
7, and March 28, 2016. In that hearing, Judge Arnold received
testimony and documentary evidence as to the circumstances in
which the defendant's December 7, 2007 sentencing took
place.[2] Thereafter, on June 23, 2016, the court
issued its written memorandum of decision denying the
defendant's motion to correct an illegal sentence.

The
following facts are set forth in the court's written
memorandum of decision. ‘‘The defendant . . . was
convicted following a jury trial involving [ten felonies and
four misdemeanors based upon her involvement in four separate
incidents involving larceny or attempt to commit larceny,
identity theft, illegal use of a credit card or attempt to
commit illegal use of a credit card, and forgery]. On
December 7, 2007, following the preparation of a [PSI] by the
Department of Adult Probation, the defendant was sentenced by
Judge Cronan . . . [to] a total effective sentence of ten
years, [execution] suspended after . . . five years, with
four years of probation following her release. . . . The
defendant, who is self-represented, filed a motion to correct
an illegal sentence on February 14, 2012. She concedes that
the actual sentence . . . was not illegal, but rather, the
sentence was imposed in an illegal manner. . . .
Specifically, she claims that the [PSI] utilized by the court
at her sentencing, was compiled without her participation,
and . . . contained a material misrepresentation . . .
because she was ‘tricked out' of participation in
the report's preparation by the probation officer, who
reported to the court that the defendant refused to
participate in preparing the report.[3] The defendant argues that
this ‘material misrepresentation' by the probation
officer was prejudicial to the defendant.''
(Footnotes altered.)

‘‘A
review of the December 7, 2007 sentencing transcript revealed
that . . . [the defendant's counsel] Attorney [Tina]
D'Amato . . . requested a continuance of the
defendant's sentencing hearing, stating that the
defendant had not had the opportunity to meet with the
probation officer and complaining that probation officer
[Lisa] Gerald was biased toward the defendant. . . . The
[sentencing] court noted that it was in possession of a [PSI]
. . . [but] indicated it was not going to hear argument as to
why the defendant's interview was or was not done on
time, providing an indication that this was not a primary
concern or consideration of the court in imposing a sentence.
. . .

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&lsquo;&lsquo;In
the course of the state&#39;s sentencing presentation, the
state summarized the charges that the defendant had been
convicted of and . . . [noted that, while] the defendant
faced a maximum incarceration in excess of one hundred years,
the state requested a total effective sentence of ten years
[of] incarceration, execution suspended after . . . five
years, followed by five years [of] probation supervision.
Defense counsel then informed the court [that] she was not
ready for sentencing, as she didn&#39;t know enough about the
defendant to advocate for her.[4] Counsel did [however] admit that
she had read the transcripts of the defendant's court
proceedings . . . [and counsel] then related facts regarding
the defendant's family background; her troubled
relationship with her parents and involuntary hospitalization
of the defendant by her parents. Counsel informed the court
that the defendant had been diagnosed with schizophrenia,
bipolar disorder and personality disorder; [and] had been
forced to take antipsychotic medications. . . . Counsel
informed the court that full restitution for her crimes had
been accomplished; and that the defendant provided care for
her [sick] father.'' (Footnote added.)
‘‘Counsel then reiterated that the defendant had
been a student at Fordham ...

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